Report prompts panel on failures of criminal justice system

A California man who spent 17 years behind bars for a murder he did not commit got to confront on Thursday a powerful prosecutor -- like the one who lied to put him behind bars.

The unusual meeting happened at Santa Clara University during an extraordinary panel discussion about prosecutorial misconduct sponsored by the Northern California Innocence Project and the Markkula Center for Applied Ethics. It was spurred in part by the release of the project's annual report documenting the failure of the justice system in 2011 to hold prosecutors accountable for putting innocent people in prison.

Similar panels have been held in four other cities from New York to Texas. But only in Santa Clara County did the elected district attorney accept an invitation to participate.

District Attorney Jeff Rosen sat quietly on stage with his lips pursed while the head of the Innocence Project, Kathleen "Cookie'' Ridolfi, ran through some of the study's highly uncomplimentary findings.

Last year, prosecutors in California committed misconduct in 92 cases serious enough to attract notice from state and federal courts. In 10 of those cases -- including one in the Bay Area, in Contra Costa County -- the courts either set aside the sentence or conviction, barred evidence or declared a mistrial.

Such misconduct, including concealing evidence favorable to a defendant, can result in costly retrials or lengthy legal battles even if the conviction ultimately is upheld.

Advertisement

This year's study actually indicates that judges found "harmful error" in a much smaller percentage of cases than in 2010 -- 11 percent, down from 25 percent.

Judges also refrained more often from making rulings on misconduct allegations, saying that the behavior wouldn't have changed the outcome. In 2010, they refrained in about a quarter of the cases -- last year, in nearly half.

Critical monitoring

It's unclear whether the changes are due to less brazen misconduct or, as Ridolfi worries is the case, less critical monitoring by the courts.

"It's a big change,'' Ridolfi said. "The question is, have prosecutors improved that much or are courts going out of their way to protect prosecutors? It's too early to tell.''

The cases also represent just the tip of the iceberg, she contended, because judges review only criminal cases that have gone to trial. The vast majority of cases -- about 97 percent -- settle via plea bargains and are rarely scrutinized.

However, she noted that a third of the misconduct cases from 1997 through 2011 involved "repeat-offender prosecutors.''

"A group of bad actors are dragging down the reputation of prosecutors,'' she said. "And we have a system that protects them.''

Then Rosen's turn came, and he started with a humorous but pointed anecdote.

The discussion, he said, reminded him of an episode of the old TV show "Twilight Zone'' called "To Serve Man.'' Aliens come to Earth, promising peace and bringing with them a book called "To Serve Man.'' All but the title are in the aliens' language. When humans decipher the contents, it turns out to be a cookbook (about gobbling up mankind, not serving its needs).

"So what I want to know,'' Rosen said, drawing a laugh from the audience of about 100 people, "is, am I on the panel or am I on the menu?''

On a more serious note, Rosen said "misconduct'' has an ominous connotation, but prosecutorial error is primarily unintentional, not malicious. It includes technical mistakes and negligence, as well as egregious actions, such as presenting false evidence, suppressing evidence, engaging in improper examination, making false and prejudicial arguments, violating defendants' Fifth Amendment right to silence and discriminating against minorities in jury selection.

The district attorney said the courts need "some different phrases'' to reflect the wide spectrum of problems caused by prosecutors, rather than branding all of it "misconduct.''

"It's a very highly charged phrase,'' he said. "It's like being called a racist, like we are horrible human beings.''

More accountability

But Rosen, who was elected on a promise to reform the office's win-at-all-costs culture after a series of scandals, added that he recognized prosecutorial misconduct as a problem and is committed to rooting it out. The solution, he said, is "the DA working with, not against, groups like the ACLU and the NCIP (Northern California Innocence Project).''

Among other steps, Rosen has followed through on a campaign promise to re-establish the office's Conviction Integrity unit. And he recently took the extremely rare step of firing a prosecutor after concluding that she committed an "outrageous abuse" of her power by pressuring police to arrest her husband's ex-wife.

Two subsequent speakers -- retired Judge James Emerson and Palo Alto defense attorney Tom Nolan -- called for more accountability but also praised Rosen's administration for addressing the issue.

But not everyone was comfortable with Rosen's comments. Obie Anthony was released last year after serving 17 years in prison of a life-without-parole sentence for a Los Angeles murder he did not commit. His conviction had been based primarily on a pimp who testified he did not receive any benefits for his testimony. But it turned out he was lying. A judge criticized a prosecutor for committing misconduct by failing to correct the pimp's false testimony and to disclose the deal to Anthony's lawyers.

Turning the podium toward the seated panelists, the thin African-American man took umbrage with the notion that accusations of prosecutorial misconduct were as loaded as calling someone racist.

"You shouldn't view it as being called racist,'' Anthony said, "but as notice that someone in your office is committing misconduct. I don't talk smack about police -- you still need police, even though some are corrupt. You still need prosecutors, even though some are corrupt. You just need to be accountable.''